Fishing for Leave’s John Ashworth explains why electoral considerations mean that British fishermen will not be sold out to the EU once again.

British fishermen have not had much reason for happiness since we joined the EEC. The Common Fisheries Policy (CFP) has been an ecological disaster and has run our industry into the ground. But last week’s Conservative Party Conference at last gave some glimmers of hope for the future.

The Attorney General, Geoffrey Cox, gave us a much-needed reminder of just what is at stake with Brexit – nothing less than our very ability to govern ourselves:

‘At 11pm on 29 March 2019 we will leave the European Union.

‘And soon thereafter, in an extraordinary moment in our history, the EU institutions will no longer have the right to make laws for our country. That power will belong exclusively to the sovereign Parliament of Great Britain and Northern Ireland.

‘That is a precious prize.’

It is indeed. It means that every single individual MP will become fully responsible for the governance of our nation, something which for 46 years has been missing.

And so how will we use this new-found sovereignty for the benefit of our agriculture and fisheries? The Prime Minister made the goal quite clear in her party conference speech:

‘Our proposal would be good for our rural communities, getting us out of the Common Agricultural Policy.

‘It would be good for our coastal communities. We would be out of the Common Fisheries Policy, an independent coastal state once again.

‘And with the UK’s biggest fishing fleets based in Scotland, let me say this to Nicola Sturgeon. You claim to stand up for Scotland, but you want to lock Scottish fishermen into the CFP forever. That’s not ‘Stronger for Scotland’, it’s a betrayal of Scotland.’

It is high time that someone from another political party took Nicola Sturgeon and the SNP to task on this subject. But it also nails Mrs May’s colours to the mast. If the Conservative government lets our fishermen down, then the SNP will be able to make the same accusation with a vengeance.

And were it not for all those newly gained Scottish Westminster parliamentary seats, Mrs May would not be prime minister now – all down to the fishing issue.

We can be certain of the following. If the EU believes there is going to be a ‘no deal’, it will raise the issue of EU access to British waters. The ball will be in their court: they will have to ask the UK.

If there is silence from the EU on fishing rights, then we can expect a deal – however bodged – so that both parties can move into the transitional period. And the EU will continue to benefit from access to UK waters via its present fisheries policy until 1 January 2021.

Remainers are fond of saying that the fishing issue is too small to bother with, and will be bartered away. I disagree. Like the Northern Ireland border, it will be a key issue, just as it was on accession. This time, British fishermen will not be so easy to sell down the river.

The Fisheries White Paper was better than I was expecting and certainly a lot of thought has gone into the wording, but – and there is always a but – the whole paper has been written on the assumption that there will be an implementation/transitional period, which is far from guaranteed.

I was also surprised to see in the Executive Summary the following two statements:

1) We do not yet know the outcome of the UK’s negotiations to withdraw from the EU or on a future economic partnership.

2) Access to markets for fisheries products will be agreed as part of our future economic partnership, just as with other goods and food products. This is separate to the question of fishing opportunities and access to waters, which consequently will be addressed separately, founded on the UK’s legal status as an independent coastal state.

Those two statements by DEFRA are an honest assessment firstly because the withdrawal agreement which includes the implementation period, is not complete, so whatever the White Paper proposes, there is no guarantee that will happen, especially given we are a long way from securing any sort of trade deal. Secondly, we know full well that the EU will demand present levels of access into UK waters as part of a trade deal. Having sacrificed fishing during the Implementation period – and those 21 months could be crucial for the survival of the UK’s fishing industry – will the same happen for a trade deal whereby the EU refuses to separate access to market and access to UK waters?. No one knows until that crunch point arrives.

The White paper, in my opinion, places too much emphasis on flawed the quota system. In this, it copies Norway and New Zealand. Neither of their fisheries management systems would rejuvenate our coastal communities. However it is admitted other management systems are available and HMG would be prepared to trial such systems, which I passionately believe would dramatically increase our scientific data, as every fishing vessel should­ become a scientific data point.

Throughout Brexit the UK has made the serious mistake of not understanding the functioning of the EU, and has therefore put forward proposals that were inevitably going to be rejected. It will be interesting to see what today’s White paper states, and if it in turn is expecting policy that the EU can’t provide.

Slowly but surely, the degree to which the Government and the Department for Exiting the European Union are floundering in their Brexit plans is becoming more apparent.

A week ago, Alistair Carmichael, the MP for Orkney and Shetland, finally received an answer to a written question about fishing. Here is the question and the answer:-

Question:To ask the Secretary of State for Environment, Food and Rural Affairs, what legal identity is planned to be in place to prevent EU vessels operating inside the Orkney and Shetland 12 nautical mile zone during the proposed 21-month implementation period after EU treaties and the derogation for exclusive use of the Orkney and Shetland 12 nautical mile zone cease to apply to the UK. (140647)

Tabled on: 02 May 2018

Answer: (George Eustice🙂

The implementation period agreed between the UK and EU was endorsed by the European Council on 22nd March.

Under the agreement, current fisheries rules and enforcement arrangements will continue to apply. This includes provisions relating to access to waters within the UK’s 6-12 nautical mile zone.

Access to fish in UK waters after the implementation period will be a matter for negotiation. Access will be on our terms, under our control and for the benefit of UK fishermen.

You will notice that the answer completely fails to address the question. It says that current conditions will apply, but does not mention the legal basis. There is a good reason for this – there isn’t one!

It’s not just fisheries issues which are exposing the hole which DExEU and the Government are digging. On 23rd May, Robin Walker and Suella Braverman appeared before the Commons select Committee. You can watch the full session on Parliamentary TV. Some particular highlights include Mr Walker’s awkwardness when questioned on customs arrangement. More importantly, there was much flannelling around the subject of the legal basis of any future treaty. Pat McFadden MP asked four times about whether Parliament will be expected to vote on the financial arrangements before a legally-binding treaty is finalised – in other words, that MPs were being expected to vote for the package “in good faith”.

The scale of the mess surrounding the negotiations is being exposed more and more by the day. A report in The Times suggests that Mrs May is seeking an extension of the transitional period until 2023. This comes a day after EU sources dismissed the government’s “backstop” plans for the Irish Border. Mrs May insisted that the proposal would be time-limited, but one Brussels source said: “It will apply for as long as there is no credible alternative. It can’t be time limited or it’s not a backstop.”

The government is going round in circles. The totally disastrous position facing our fishing industry if Mrs May persists with her current plans were laid bare over a month ago. We remain hopeful that this will not happen because these plans are being proved more untenable by the day. It may take a crisis to bring about a change of direction, but so flawed are the current plans that the crisis may not be long in coming.

During the House of Lords select committee on 1st. May 2018, the Earl of Kinnoull said to David Davis Brexit Secretary of State, “I want to come back to what you said about the European Union not being able to agree a treaty with us while we are still members. I have been troubled and scratching my head over that”.

He is not the only one. Article 50, the mechanism which secures the UK departure from the EU as from 30th March 2019, raises two serious problems.

1) The EU treaties, and thus all its regulations will cease to apply to the UK as from 30th March 2019.

2) The EU can’t sign a Treaty with the UK while the UK is still a Member, meaning the earliest being 30th March 2019.

Put together, these two conditions cause serious problems, because if you compare the procedure in joining the then EEC in 1972, there was an orderly procedure. First came the signing the treaty of membership on 22nd January 1972, and then followed the ratification process, resulting in the European Communities 1972 Act, which ensured everything was ready to commence membership on 1st January 1973.

The leaving process, by contrast, is topsy-turvy. The procedure has been reversed. Taking evidence from David Davis during the Lords’ session and the House of Commons select committee of 25th April, you can understand why the Earl of Kinnoull is scratching his head. Mr Davis appears to be contradicting himself.

Before the House of Commons, he stated that there will be several votes on the outcome of the negotiations with the first vote being what has been referred to as the “meaningful” vote: a vote on the overall treaty and agreement in both Houses. We will do this before the European Parliament will vote on it. Here are some of the questions:-

Q1388 Chair: Will the document on the future relationship be a political declaration or a draft treaty?

Mr Davis: It will be at that stage a statement of the Council. I would not imagine we will have legal text at that point.

Q1389 Chair: What status will it have if it just a statement of the Council?

Mr Davis: Nearer to political declaration than draft treaty. It will not be in draft as a legal text at that stage.

Q1390 Chair: It is likely to be a political declaration, and a political declaration is not a treaty.

Mr Davis: No, it is not a treaty. Again, to remind you of previous evidence, Mr Chairman, when I have appeared in front of this Committee I have reminded you that the requirements of European law are that they cannot sign a treaty with us until we are a third country. That means they cannot sign a treaty, which is the only point at which a treaty becomes in any way binding, until the first days of April or the last day of March in 2019.

Q1391 Chair How can Parliament set any store by it if it is asked to vote on this whole process when the really important question of our future relationship is merely a statement of the Council in the form of a political declaration and not a draft treaty?

Mr Davis: That does not mean the Council will not view it as binding. After all, each of the agreements we have come to in December and March are seen as binding. They are not legally binding but we view them as completely politically binding. (By International Law, not EU Law)

In summary, Mr Davis told the House of Commons that there may be more than one treaty, for a start. It is impossible. We do not know what the full structure of the treaty will look like: whether security and defence will be separate from the future economic partnership. It is quite possible. Some of these things will have substantive domestic effects, so they will of course come with Acts of Parliament before the House as well.

However, he told the House of Lords that we have to have everything pretty well nailed down even legally at the beginning of the implementation period. It will not be ratified, because they cannot sign a deal with us until we are a third country, which will be shortly after formal departure from the Union, but the ratification process will also take place during that period. To achieve this, the agreement must be basically complete by October, at least in joint report-type terms, and fully legally watertight by the time we leave.

He added that signatures will not be put to the treaty until after Brexit Day because “they can only sign with a third party, as Lord Jay knows better than most, I guess. So I will aim to conclude the negotiation, if I can get to that point by then, so that they can sign and then start the ratification process. Remember that ratification will require a brand new European Parliament, which will only just be being elected at that point, and a brand new Commission, and almost certainly—for some of it at least, if not for all of it—it will be a mixed agreement, so it will go round the Parliaments of Europe. So there is quite a lot to get done in ratification terms. We absolutely have to have ratification concluded before the implementation period is over, otherwise we will be in a sort of limbo.”

We need to remember that ratification is the action of signing or giving formal consent to a treaty, contract, or agreement, making it officially valid. That is , valid according to EU Law. An example of this took place with Denmark over Maastricht and Ireland over Lisbon, where EU law did not apply until after ratification yet International Law did – and of course, under the proposed implementation period, we would expect to be under the ECJ, so what would be the legal basis?

In summary, like Lord Kinnoull, we are all scratching our heads, because it is utter confusion. It needs some bright lawyer to pin Davis down to what is going on. I have only taken this line of investigation because I questioned the legal right for the UK to have exclusive use of the 12 nautical mile fishing limit during the implementation period, fearing that we could run the risk of EU vessel owners, not only fishing inside that limit, but taking the UK to court, as happened in the Kent Kirk case in 1983.

M. Barnier, the EU’s chief negotiator, showed a chart of the draft withdrawal agreement at a press conference on 19th March 2018 . It was colour-coded, with green being used to highlight what had been agreed. What struck me on seeing the draft agreement in full, that there was over 170 articles, of which a handful had been added at a later date and denoted by an (a) suffix. It was as if the negotiators had hit a problem, or thought of something else resulting in the necessity of adding something more or less on the hoof.

Article 4a is the first of these and its wording is significant:

Article 4a

Good faith

The Parties shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement. They shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from this Agreement and shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement.

This Article is without prejudice to the application of Union law pursuant to this Agreement, in particular the principle of sincere cooperation.

Once this article appeared, the tenor of the standard replies to parliamentary written questions began to change. Take the example below:-

Robin Walker, Parliamentary Under-Secretary of State for Exiting the European Union in part reply to DUP Westminster leader Nigel Dodds – 27th April 2018.

In order to ensure that the UK’s interests are protected during the implementation period, a Joint Committee will be established to provide the UK with a means to raise concerns regarding new laws, which we consider might be harmful to our interests. We have also agreed that the whole Withdrawal Agreement will be subject to an article of good faith, ensuring that both sides support each other in delivering the agreement.

Note that the phrase “good faith” appeared in the reply. I am very suspicious about the proposals for the fishing industry during the proposed transitional period, especially relating to the exclusive UK use of the 6 and 12 nautical mile inshore zone. My concerns revolve around the legal authority underpinning the terms for any transitional arrangements. I remember vividly the1983 Kent Kirk case, where a Danish skipper, who was also an MEP, deliberately brought his fishing vessel inside the British 12 mile limit and started to fish. He was promptly arrested, found guilty and fined. He then took his case to the ECJ, where the verdict was overturned,.

Kirk’s behaviour came about because of a loophole which he was keen to exploit. The first derogation giving the UK the exclusive rights expired on 31st December 1982, and the replacement derogation didn’t come into force until the 27st January 1983, so in good faith, Danish vessels were not supposed to fish inside that zone, but legally there was nothing to say that they couldn’t. If it wasn’t for the weather being particularly bad during January 1983, far more Danish vessels would have fished in that zone.

EU law operates in an unusual way. The Regulations take their authority from the Treaties, and when we joined the then EEC Edward Heath signed the Accession treaty on 22nd January 1972, and thereafter Parliament ratified the treaty through the European Communities (1972) Act, which came into force afterwards – on 1st January 1973.

Now it appears everything is being done the other way round. We currently have the complication of two bills going through Parliament, the European Union (Withdrawal) Bill, followed by the Implementation and Withdrawal Bill , but as David Davis told the House of Lords select committee on 1st. May it is not known yet if there will be a single treaty or two, nor when it will be agreed and signed – perhaps during the transitional period but maybe not until later. .

So we are in a state of utter confusion. There are two particular concerns. Firstly, Article 50 of TEU only allows the EU to sign the treaty when the UK takes up third country status – in other words, ceases to be a member of the EU. Our ministers and negotiators are clinging to the crazy idea that the rules and laws will be the same before and after Brexit. While the rules might be the same, the legal basis will be different as we will not be a member of the EU so its treaties will not apply to us and the EU will not have signed any new treaty with us, which means it is hard to know what legal basis the transitional period will be governed by.

Have the negotiators woken up to this seeming legal black hole? Is this why Article 4a has been included? Unfortunately, the EU doesn’t operate on a “good faith” basis, so very little is likely to be legally watertight, which will mean that any disputes will go to the ECJ. .

Certain written parliamentary questions are waiting answers that might throw some further light on this subject, but at the moment, if the proposed 21 month-transitional agreement goes ahead, it will be on a very uncertain legal basis. It is ridiculous that Parliament is being asked to vote on this when so much is still so vague. For all the talk of “good faith”, the door will be left wide open to legal challenges, just as happened in the Kent Kirk case.

A parliamentary question, asked only this morning (Thursday 3rd May), proves the point. The reply was vague and not convincing:-

Peter Aldous (Waveney) (Con)

As this country will be an independent coastal state managing and controlling access to our own waters with effect from 1 January 2021, is the Minister able to provide an assurance that such access for EU fishing vessels will not be part of the Brexit negotiations?

The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Steve Baker)

My hon. Friend will have heard my earlier answer. We are clear that future negotiations over trade must be separate from negotiations over access to waters. There would be no precedent to link the two, and we will continue to take this position in our negotiations on the economic partnership with the EU.

It will be interesting when a reply is given to this written question:-

Mr Alistair Carmichael (Orkney and Shetland):

To ask the Secretary of State for Environment, Food and Rural Affairs, what legal identity is planned to be in place to prevent EU vessels operating inside the Orkney and Shetland 12 nautical mile zone during the proposed 21 month implementation period after EU treaties and the derogation for exclusive use of the Orkney and Shetland 12 nautical mile zone cease to apply to the UK.

Slowly but surely, the holes in our side’s negotiating position are being exposed. If the transitional arrangements were scrapped and we instead decided to rejoin EFTA, it would solve these legal complexities at a stroke.

When you are running a very long term campaign, it is surprising where the breaks come from, no more so than this written question from Liberal Democrat Alistair Carmichael, MP for Orkney and Shetland.

Mr Alistair Carmichael: [135549] To ask the Secretary of State for Environment, Food and Rural Affairs, on what date the 1964 London Fisheries convention will cease to apply to the UK; and from that date all EU fishing vessels will be excluded from the UK’s 6 to 12 nautical miles zone.

George Eustice (Minister of State for Agriculture, Fisheries and Food): The 1964 London Fisheries Convention will cease to apply to the UK on 2 July 2019. During the implementation period, current access arrangements will continue, including access to the 6 to 12 nautical miles zone where permitted under current EU rules. After 2020, we will decide who can access our waters and on what terms. Any decisions about giving access to vessels from the EU, and other coastal states, to our waters will then be a matter for negotiation.

To give George Eustice his due, it was an honest answer although not what our fishing industry wants ot hear. There is, however, more to his answer than appears at first sight.

The UK Government gave two years notice at the beginning of July 2017 to leave the London 1964 Fisheries Convention (which gave certain EU Member States the rights to fish in our 6 to 12 nautical mile zone).

At that period of time, only 3 months into the two years period from invoking Article 50, the government thought that this slight overlap did not matter as we would be coming out of the EU, including the CFP, taking full control of the nation’s marine resource on 30 March 2019.

Because the Government, through wasting so much time, has ended up having to go cap in hand to the EU Commission for extra time, at the first demand from the EU, they surrendered their trump card – fishing. The date of so called exit is now 1st. January 2021

It is not just fishing. For 21 months, unless the government changes course, much of the running of the UK will be handed to the EU. The importance of Mr Carmichael’s question is that the answer clearly shows that the decision to surrender rests entirely with the UK Government, not with the electorate nor the opposition, nor even the EU.

The only other country to leave the EU (then EEC). has been Greenland. I remember it well. While we cannot draw too many parallels, it was noticeable then that Greenland’s negotiators took a bashing from their Brussels counterparts, but they knew their ground, stood firm, told the EEC to get their vessels out of Greenland waters and ended up with an excellent trade deal. What a contrast from our team! What an unbelievable mess they have made. Greenland understood what control of their fishing waters meant and how important it was. Here in the UK, “control” will essential mean “EU control” as our spineless team of ministers allows Brussels to make all the running.